(dissenting).
{41} Respectfully, I must dissent from the majority opinion. I also concur fully in Justice Minzner’s dissent. I believe the Governor’s appointment authority in regard to the Judicial Standards Commission is limited by N.M. Const, art. VI, § 32, to appointments at the expiration of a designated term or appointments to fill vacancies created during the interim in accordance with existing law, the Commission being outside the executive branch of government. Accordingly, I would grant a permanent writ of quo warranto.
{42} At its core, the Commission’s argument centers on its essential need for independence, an independence which is, in my judgment, implicit in the Constitution and which precludes any wholesale change of membership, whether by a governor or any other appointing authority. In support of its claim to independence, the Commission emphasizes its quasi-judicial functions, which include investigating complaints against judges throughout the state and, when appropriate, recommending their removal to the Supreme Court.
{43} The majority, however, is persuaded by Respondents’ reliance on Article V, Section 5 of the Constitution, which provides: “The governor shall nominate and, by and with the consent of the senate, appoint all officers whose appointment or election is not otherwise provided for and may remove any officer appointed by him unless otherwise provided by law.” Because all six of the Commission’s lay members are subject to gubernatorial appointment, the majority holds that they are equally subject to “indiscriminate[]” gubernatorial removal, at the Governor’s discretion.
{44} Respondents emphasize that nothing in Article VI, Section 32, or in any implementing statute of the Commission, expressly restricts the Governor’s authority to “remove any officer appointed by him[,]” pursuant to Article V, Section 5. The Commission, on the other hand, argues that the Governor’s Article V, Section 5 appointment authority is limited by the terms of Article VI, Section 32. Thus, we are confronted with a conflict between two separate sections of the Constitution, one within Article V, which sets forth the powers of the “Executive Department,” and one within Article VI, which sets forth the powers of the “Judicial Department.” The answer, I think, lies at least partially in the Commission’s lineage.
{45} As the majority discusses, the Constitutional Revision Commission determined that the way to create “judicial disciplinary machinery” was to establish an independent, non-political entity that could investigate and recommend removal of corrupt and incompetent judges, without the political burdens and obstacles of the impeachment process. Elaborating on the need for a commission with independence, the 1967 Report stated: “In order to achieve an efficient and well disciplined judicial system possessing the highest degree of integrity, it is felt that an independent [judicial standards] commission is necessary to oversee and investigate the performance, conduct and fitness of members of the judiciary.” 1967 Report of the Constitutional Revision Commission at 88; see also Petition of Bd. of Comm’rs of State Bar, 65 N.M. 332, 337 P.2d 400 (1959) (holding that impeachment, not a complaint by the Board of Bar Commissioners, was the sole method of reviewing a judge for cause under the Constitution). Continuing on the need for independence, the 1967 Report stated:
Not only is the independence of the judiciary protected, but we are convinced that the strength and capability of the judicial branch of the government is greatly enlarged. The essence of such a body, functioning and able to be used if and when necessary, is an effective element in the strengthening of the judicial system and in leading to a higher standard of judicial conduct.
Id. at 90, 337 P.2d 400. See generally Joseph Michael Norwood, Constitutional Revision— Judicial Removal and Discipline — The California Commission Plan for New Mexico?, 9 Nat. Resources J. 446 (1969).
{46} To realize this goal of an independent “judicial disciplinary machinery,” Article VI, Section 32 and its implementing statutes created a commission of both professional and lay membership. Commission action on disciplinary complaints requires concurrence of the majority of the full membership, with both the position of chairman and the majority of votes reposed in the lay membership. The five professional members are appointed to four-year staggered terms, two judges and a magistrate by the Supreme Court and two lawyers by the State Board of Bar Commissioners. Lay members, who may not be judges or lawyers, are appointed by the governor to five-year staggered terms. No more than four of the six lay positions may be from the same political party. N.M. Const, art. VI, § 32; NMSA 1978, § 34^10-1 (1999). Article VI, Section 32 is supplemented by statute: Section 34-10-1, which implements the terms of the commissioners and provides for their appointment, NMSA 1978, § 34-10-2 (1968), which provides for appointments to fill vacancies, NMSA 1978, § 34-10-2.1 (1977), which sets forth the duties, responsibilities and powers of the Commission, and NMSA 1978, §§ 34-10-3, - 4 (1974), which authorizes the Commission to appoint an executive director.
{47} Article VI, Section 32 provides that lay members are appointed by the Governor for “five-year staggered terms as may be provided by law.” Section 34-10-l(A) provides for the staggered-term appointment of initial lay members (each appointed for a term of different years) and stipulates, thereafter, that these positions shall be filled “in such a manner that one term expires on June 30 each year.”
{48} The Constitution’s express choice of staggered terms is significant. It puts in place what we have previously described as a “formal system of staggered terms,” the objective of which “is the perpetuation of a rigid staggering plan” by ensuring that vacancies unfold in an organized, pre-determined fashion. Denish v. Johnson, 1996— NMSC-005, ¶ 38, 121 N.M. 280, 910 P.2d 914. In Denish, unlike the present case, the constitutional section at issue did not use the express language, “staggered terms,” but this Court was not deterred; we recognized that same intent from the language employed. We stated that a staggered-term system is designed to preserve continuity and stability “by preventing the theoretical possibility of all appointees being replaced at once.” Id. ¶ 40. As one of its virtues, a formal system of staggered terms “tends to insulate the public entity as a whole from being manipulated for political reasons.” Id. Staggering also promotes “institutional memory by assuring that older appointees have the opportunity to pass on important knowledge and experience to newer appointees.” Id.; see also Commonwealth v. Singley, 481 Pa. 367, 392 A.2d 1337, 1340 (Pa.1978) (holding that newly-elected mayor did not have the power to remove and replace, at his pleasure, two redevelopment authority officers appointed by his predecessor, and noting that “creating fixed, staggered terms of office demonstrates a legislative intent to deny the mayor the right to remove, at his pleasure, members of the Redevelopment Authority”).
{49} Thus, a formal provision for staggered terms, when inscribed indelibly in the Constitution, represents a deliberate choice by the people to limit turnover in the Commission’s membership. Like any choice, it comes at a cost. In the name of achieving stability and independence, the Constitution limits the prerogatives of the appointing authority. Members may be replaced at the conclusion of a term, whenever a position becomes vacant “for any reason,” N.M. Const, art. VI, § 32, or “whenever a member dies, resigns or no longer has the qualifications required for his selection.,” NMSA 1978, § 34-10-2 (1968). See also NMSA 1978, § 10-16-3 (1993) (describing ethical principles of conduct for public officers). However, the choice of staggered terms strongly suggests that commission members cannot be replaced at any time for any reason. Especially when considered in combination with the Commission’s quasi-judicial mission and its irrefutable need for independence, it suggests that any wholesale replacement of commission members prior to the expiration of their terms would be antithetical to the letter and spirit of the Constitution. Any other interpretation of staggered terms, such as that offered by the majority, reduces it to constitutional insignificance, a mere formality, easily subverted, and along with it the Commission’s independence.
{50} On its face, Article V, Section 5 of the New Mexico Constitution grants the Chief Executive plenary power over his appointees, including the power to replace those appointees at will “unless otherwise provided by law.” In prior decisions of this Court, we have recognized the breadth of that authority. See State ex rel. Duran v. Anaya, 102 N.M. 609, 698 P.2d 882 (1985) (upholding the Governor’s constitutional authority to replace appointees to the State Board of Barber Examiners prior to the expiration of their stated terms); State ex rel. Ulrick v. Sanchez, 32 N.M. 265, 255 P. 1077 (1926) (upholding the Governor’s constitutional authority to replace the associate commissioner of the State Tax Commission, before the expiration of his term, who had been appointed by the Governor with the advice and consent of the senate); see also Mitchell v. King, 537 F.2d 385 (10th Cir.1976) (interpreting New Mexico state law and upholding the Governor’s power to replace a member of the State Museum Board of Regents appointed to a fixed term).
{51} The majority acknowledges that the appellate cases interpreting Article V, Section 5, on which it relies, address gubernatorial power over executive officers, rather than appointees to the judicial branch. This should not surprise. Within the context of the executive branch of government, the Governor, as Chief Executive, is responsible for implementing policies for which he is accountable to the people. The Governor “is held responsible to the sovereignty [of the people] for errors in his executive and administrative policies. [Thus t]he appointee is responsible to the chief executive....” Ulrick, 32 N.M. at 290, 255 P. at 1086 (internal quotation marks and citation omitted). Attendant to the Governor’s responsibility for executive policy must come the power to implement that policy, including appointment and replacement of executive officers. This is the essential message of our precedent interpreting Article V, Section 5. Nothing in this dissent should be read as advocating any diminution of gubernatorial control over executive branch appointees.
{52} However, the Judicial Standards Commission is different. The Constitution places the Commission within the judicial branch, not the executive. As part of the judicial branch, the Commission’s functions are primarily investigative and quasi-judicial; it has no policy-making function, least of all that of implementing polices and initiatives of any single branch of government. This is why the Commission was created to be independent of any exterior influence, not integrated within the overall policy-implementing apparatus of any one branch of government. Thus, the critical distinction between this case and the authorities relied on by the majority lies in the fundamental constitutional principle of separation of powers, as illustrated by Article VI, Section 32. See generally N.M. Const, art. Ill, § 1 (providing for three distinct and separate branches of government); State ex rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343, 961 P.2d 768 (addressing separation of powers in the context of holding that the Governor violated doctrine of separation of powers by implementing the type of substantive policy changes reserved to the Legislature).
{53} Over seventy-five years ago, this Court observed that Article V, Section 5 was a creature of the executive branch: “And there are but few state officers appointed by [the Governor], and only his appointees may be removed by him, and apparently most, if not all, of the officers which may be appointed by him are such as have to do with the executive department of the state government.” Ulrich, 32 N.M. at 282, 255 P. at 1083. Although the number of executive officers subject to gubernatorial appointment and replacement now number into the thousands, the general observation set forth in Ulrich holds just as true today. Ulrich was written in 1926 by judges who possessed a familiarity with the drafting of our State Constitution. That opinion concerns the power of the Governor over officers within the executive branch. There can be little doubt that Article V, Section 5 originated from concerns over the executive branch. Before now, no one has ever sought to extend Article V, Section 5 beyond the parameters of the executive branch, and with good reason. See Lunding v. Walker, 65 Ill.2d 516, 3 Ill.Dec. 686, 359 N.E.2d 96, 98-101 (Ill.1977) (holding that governor can only remove election board member for cause, and distinguishing between officers whose function is part of the executive branch and those whose tasks require freedom from executive interference).
{54} The majority, focusing on the precise language utilized in Article V, Section 5, emphasizes that, from time to time, the Legislature has “otherwise provided by law” to restrict the Governor’s plenary power to replace appointees, such as requiring a showing of cause. See, e.g., NMSA 1978, § 67-3-5 (1967) (providing that highway commissioners shall not be removed except for incompetence, neglect of duty or malfeasance in office). At times, similar restrictions have been engrafted into the Constitution. See N.M. Const, art. XII, § 13 (restricting the Governor’s power to remove members of the Board of Regents). The majority emphasizes that the Legislature has never seen fit to “otherwise provide” and restrict the executive power to appoint or remove members of the Commission. Therefore, by negative implication and in the absence of such express restriction, the majority contends that Article V, Section 5 must apply to the Governor’s power of appointment of members to the Commission.
{55} If the Commission were just another executive agency, the argument might be persuasive. The scope of executive powers under Article V, Section 5 with respect to the executive branch of government is broad, and appropriately so. But when the Governor’s appointment authority is directed to the Commission as a member of the judicial branch, then Article V, Section 5 must be read in light of the language and intent of Article YI, Section 32. Having created the Commission in such an independent fashion, the people, by their very vote, have insulated the Commission from the ordinary executive business of Article V, Section 5. Having participated in the Commission’s creation in this very independent form, the Legislature need not repeat itself by statute.
{56} Finally, I cast my vote as I do, regardless of the benign motives of this Governor or any other appointing authority. Indeed, in the constitutional sense, motives are irrelevant to our analysis. Either the Constitution tolerates the power to replace Commission members at will, or it does not. In interpreting the Constitution, we write for the future, not just the present. Wholesale replacement of Commission members will subject future Commissions to the unfettered control of one political office. Once ratified, however improvidently by this Court, that power may be exercised for good or for ill by future governors. The very principle of separation of powers is built on a premise, tested by time and experience, that takes into account the worst as well as the best of mankind. Absent some express exception in the Constitution, that principle should inform our decision and, in my judgment, requires us to delimit executive authority in this special circumstance. For that reason, I respectfully dissent from the majority opinion and would vote to grant the writ.
I CONCUR: PAMELA B. MINZNER, Justice.